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Tennessee's bullying law

The Tennessee state legislature is currently considering a bill defining just what counts as bullying. I’m far from a legal scholar, but as best I can read the summary (linked above), the bill would say that if someone causes harm to a student or his property; sets up a situation where it is reasonably likely he will suffer that same kind of harm; or creates a hostile environment, that’s bullying.

I’m not crazy about the formulation because it leaves out the psychological component (would we be content to tell an adult abuse survivor that he needed bruises and broken bones or it wasn’t really abuse?), and also because it doesn’t really spell out what it means to reasonably put someone in harm (does bullying someone to the point of suicide, if you knew he was psychologically at risk, count?). But those issues aside, it’s not a bill that I would get particularly upset about. At least it’s addressing this as an issue, which is a good thing.

This bill is not new. (It was first introduced back last February.) But in the wake of gay TN teen Jacob Rogers’ suicide, it’s getting a lot of press. The summary of the bill explains that ”creating a hostile educational environment” would not include discomfort or unpleasantness that can accompany the expression of a viewpoint or belief that is unpopular”, and furthermore that committees trying to address school bullying ”may not include materials or training that explicitly or implicitly promote a political agenda”. These two points together has several liberals – not just in Tennessee but in the blogosphere generally – quite upset.

Wendy Kaminer shot back, essentially arguing that liberals should be for “loop holes” that allow people to express unpopular ideas, which is how she reads this bill. She admits that she has problems with the second bit quoted above, but that she thinks the wholesale condemnation goes too far. Because, you know, expressing any opinion is a good thing, and it’s the kind of thing First Amendment advocates (which most liberals are) should be all for.

As I said above, I’m not a legal scholar. I can’t talk about what exactly the First Amendment protects legally. But this whole exchange got me thinking about the meaning of speech, why it’s good and whether bullying falls under that rubric. It really doesn’t, for a simple reason: Free Speech is supposed to be about the exchange of ideas, even unpopular ones. As hard as it to swallow something like Westboro Baptist’s shenanigans, Americans as a society have decided we’re best served knowing that all of those crazy ideas are out in the open for anyone to see and judge for themselves whether they’re crazy or not.

When confronted with the aforementioned “church,” I sometimes am not so sure about that decision(!), but it doesn’t really matter here. Because bullying is not an exchange of ideas. It’s more akin to abuse, either emotional (if no assault is involved) or physical. And yes, sometimes it’s based on an idea like homosexuality is wrong, but it’s played out as a persistent set of insults and degredations intended not to convey information but to beat the kid down.

Moreover, these are kids that are legally required to be at some school, and if their parents aren’t any more supportive of their homosexuality than their classmates are (which, you know, isn’t outside the realm of possibility given the region of the country this law affects), it’s unlikely they’re willing to homeschool or shell out the dollars/commute for a more supportive school. If someone has to go somewhere then he is not consenting to a conversation anyway. Even if there were ideas being traded, he doesn’t want to trade ideas back. And so the value enshrined in the First Amendment – that the free trade of ideas is a good thing – just doesn’t apply here.

Sometimes I wish people would keep this distinction in mind when talking about free speech. Legally, it may not be possible to distinguish the two types of speech, but morally, philosophically, we can. Ideas are good, and we shouldn’t try to keep them from being shared. But bullying, verbal abuse of an adult, and other such activities just aren’t that kind of speech.



( 10 comments — Leave a comment )
Jan. 6th, 2012 03:37 pm (UTC)
would say that if someone causes harm to a student or his property [... which] leaves out the psychological component

INAL, but wouldn't that depend on the definition of harm? English law (and I think Scottish law also) includes mental harm in its definition, so that - for example - causing someone serious mental trauma falls under the offences of actual/ grievous bodily harm*. Do you happen to know the American position on this?

* Much harder to prove than physical harm, but that's probably inevitable.
Jan. 6th, 2012 04:41 pm (UTC)
I should have been clearer here. The bill summary I linked to (which is prepared by the state legislature rather than a news outlet or other third-party) explicitly refers to "physically harming a student" or creating a situation where there is "reasonable fear of physical harm." That last one also carries with it the requirement of knowingly creating the situation.

So I would imagine the only way mental harm could count would be if (a) it was reasonable that it led to physical harm (like suicide or, perhaps, lesser physical harms like cutting or extreme fighting), and (b) the person who did the bullying knew the harm would result. Which would be damned near impossible to prove, especially the second point.

As for the larger American legal tradition - I really don't know. If anyone else does, please weigh in.
Jan. 6th, 2012 04:45 pm (UTC)
Ah, I see, sorry. That's a major shortcoming.
Jan. 6th, 2012 07:56 pm (UTC)
Generally speaking, the definition of "bodily harm" (which is the US equivalent of GBH) does not include mental trauma, except where it can be shown that the mental trauma led directly to an objectively verifiable injury, and even that's a difficult standard to meet because it's not always possible to prove causation in those cases.

On the other hand, intentional infliction of emotional/mental distress is a tort in US law, and a person who has suffered mental trauma as a result of someone else's actions can certainly sue for damages. Basically, a plaintiff has to show the following: 1) the defendant acted intentionally or recklessly; 2) the defendant’s conduct was extreme or outrageous; and 3) the extreme or outrageous conduct caused 4) severe emotional distress.

The "extreme or outrageous" conduct bit is usually the hardest to prove up, and may not actually be a recourse for a victim of bullying, since bullying probably doesn't rise to the level of outrage necessary. Sadly.
Jan. 6th, 2012 08:17 pm (UTC)
*nods* Thank you.
Jan. 6th, 2012 07:49 pm (UTC)
Free Speech is supposed to be about the exchange of ideas, even unpopular ones.

I don't think that's correct, or properly reflective of the history of free speech in the United States. Free speech has nothing to do with the exchange of ideas (although it certainly encourages it). Free speech, particularly as enshrined in the First Amendment, and as generally accepted in Americal legal/constitutional doctrine, is about the expression of ideas. Whether we like it or not, bullying is the expression of an idea, even if it's highly reprehensible and offends our notions of decency and dignity.

I expect that bullying laws pass First Amendment scrutiny because bullying is not just speech. In fact, it's more conduct (i.e. the nonspeech aspect of a person's behavior) than speech (i.e. the verbal and/or written expression), and the First Amendment does not necessarily protect conduct (i.e. the physical or emotional force that accompanies bullying, or is the direct result of bullying). The problem is that the speech vs. conduct debate is full of excellent arguments on both sides, and the only 100% accepted view is that speech used as part of the violation of existing criminal law is conduct, not speech, and therefore, not protected by the First Amendment.
Jan. 7th, 2012 04:05 am (UTC)
I've spent too much time watching Law and Order, apparently. I'll defer to your judgment, since I am so not a legal scholar - I can talk about the philosophy of law to an extent but not actual law.

Still, I'd say that bullying doesn't even meet the idea that it's about expressing an idea (with or without exchange). At least on principles; I'm not talking about legal strictures here but more the ideas that form the framework the law calls to mind. Not all sentences express an idea. Philosophically, an idea is a concept (like love, Albuquerque, the Cleveland Indians, etc.) that stands in relation to other concepts. So "The Indians are the best team in baseball" is an idea. "Go Indians!" is not - it doesn't tell us anything about the Indians or other concepts, it just expresses an emotion. Bullying seems to function along those same lines. Speaking from my own experience, the bully usually doesn't want to communicate a factual claim; he (or she; my own tormentors were mostly girls) wants to make the bullied person feel bad. So it's not really speech aimed at expressing an idea; it's more like an assault on the psyche.

Now, I don't know how you'd codify that distinction in law. It may be impossible. But philosophically, I think there is a difference.
Jan. 8th, 2012 03:49 am (UTC)
But philosophically, I think there is a difference.

I'd argue the difference you're talking about is a distinction without a difference. I could say "The Steelers suck," for example, and it would be both the expression of an idea and verbal assault directed at Steelers fans. While there is a significant degree of difference in the severity of that statement and the sort of statements that bullies typically use, it's still the expression of an idea, which may also cause mental distress to the person the statement is directed at.

Since you brought this up in the context of a law, the philosophical distinction--and I'm not convinced there is one--is largely irrelevant. As a practical matter, the law can't concern itself with the subjective intent of the speaker, and unfortunately, bullying--either the act itself or its effect on others--is mostly a subjective thing.
Jan. 8th, 2012 06:08 am (UTC)
I often use law cases as a springboard into more theoretical matters. It's something about how my brain works - there's something about the back-and-fourth of legal arguments that is reminiscent of philosophy, but it's played out in a more applied way than my own discipline is, so perhaps it's easier to talk about philosophy under the guise of law than it is to talk about it as philosophy. Maybe that's wrong or misleading on my part; I don't know.

I don't deny that there's an idea behind a bully's words. But the idea is almost tangential, and the real reason for sharing the idea is for its use as a weapon rather than as a tool for understanding. That to me makes the expression of ideas aspect inconsequential, just like if a mugger used a scalpel rather than a switch-blade to harm you it would still be an assault rather than surgery. It's all about the purpose the words are put to, that makes harmful words in one case okay and even necessary, whereas in the other case the words are inexcusable.
Jan. 7th, 2012 02:16 pm (UTC)
I totally agree with you. We discussed some of these issues in one of my classes last semester (not in law school, but my prof is an attorney). I believe in the First Amendment even as it applies to the most extreme and repugnant of cases. However, there are also reasons why we have the classic example of the First Amendment not applying to someone shouting "fire" in a crowded theater, and why verbal/emotional abuse is also not protected by free speech. There's a big difference as to expressing one's ideas without fear of legal reprimand, and specifically attacking an individual. I'm on the fence as to how successful bullying laws such as these are in making that distinction, and thus how effective they will be in protecting the targets of bullying.
( 10 comments — Leave a comment )



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